Com. v. O'Dell

• Citation: 466 N.E.2d 828,392 Mass. 445
• Parties: COMMONWEALTH v. James O'DELL, Jr.
• Decision Date: 11 July 1984
• Court: United States State Supreme Judicial Court of Massachusetts

Page 828

466 N.E.2d 828

392 Mass. 445

COMMONWEALTH v. James O'DELL, Jr.

Supreme Judicial Court of Massachusetts,

Essex.

Argued April 3, 1984.

Decided July 11, 1984.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

Francis T. Mayo, Salem, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant was indicted for the armed robbery of a convenience store in the city of Salem. The indictment was dismissed by a judge of the Superior Court. On appeal by the Commonwealth, the Appeals Court reversed. We allowed the defendant's application for further appellate review. We affirm the order of the Superior Court.

The indictment was dismissed pursuant to a motion of the defendant which asserted that the evidence before the grand jury was insufficient to support an indictment and that the prosecutor improperly withheld exculpatory evidence from the grand jury. The judge ruled that the evidence before the grand jury was insufficient to support an indictment. He did not reach the issue whether the prosecutor violated a duty to present exculpatory evidence. The Commonwealth appealed, and the Appeals Court by a summary disposition reversed the order dismissing the indictment. Commonwealth v. O'Dell, 16 Mass.App. 1109, 454 N.E.2d 1303 (1983). The Appeals Court's order stated that the evidence was "more than sufficient to establish the identity of the defendant and probable cause to arrest him," citing Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). The order further stated that "the prosecutor had no duty to place before the grand jury evidence which is claimed to be exculpatory," citing Commonwealth v. McJunkin, 11 Mass.App.Ct. 609, 613, 418 N.E.2d 1259 (1981).

The defendant argues that the evidence presented to the grand jury did not warrant a finding of probable cause to arrest him, and that therefore it was insufficient to support the indictment in accordance with the minimum standard articulated in Commonwealth v. McCarthy, supra, 385 Mass. at 163, 430 N.E.2d 1195. He also argues that the standard by which the sufficiency of the evidence to warrant an indictment should be measured is its sufficiency to warrant a finding of guilt rather than its sufficiency to warrant a finding of probable cause to arrest. In addition, the defendant argues in his brief that we should require that the evidence relied on be such that it would be admissible over objection at trial. The defendant orally argued before us that if we are unwilling to hold that the evidence necessary to support an indictment must be of such a nature that it would withstand objection at trial, at least we should hold that to sustain an indictment there must be some evidence, whether competent or not, which, if believed, would rationally permit a finding of the defendant's guilt. Lastly, the defendant argues that the prosecutor improperly withheld exculpatory evidence from the grand jury.

Our affirmance of the dismissal of the indictment results from our conclusion that the integrity of the grand jury proceeding was impaired by an unfair and misleading presentation to the grand jury of a portion of a statement attributed to the defendant without revealing that an exculpatory portion of the purported statement had been excised. We do not announce a rule that would require prosecutors in all instances to bring exculpatory evidence to the attention of grand juries. We are satisfied in this case, however, that the withholding of a portion of the defendant's statement distorted the portion that was repeated to the grand jury in a way that so seriously tainted the presentation to that body that the indictment should not have been allowed to stand. The indictment is to be dismissed, therefore, but without prejudice to the right of the Commonwealth to seek a new indictment. The defendant has not argued that the indictment should be dismissed with prejudice, and we are not satisfied that the Commonwealth's presentation to the grand jury was so wilfully deceptive or otherwise egregious that the Commonwealth should be precluded from seeking to reindict. See Commonwealth v. Salman, 387 Mass. 160, 439 N.E.2d 245 (1982); Commonwealth v. Manning, 373 Mass. 438, 367 N.E.2d 635 (1977).

Only one witness testified before the grand jury. He was a detective in the Salem police department. The detective testified that on September 21, 1982, at about 8 P.M., he responded to a call concerning an armed robbery at Richdale Store on the corner of North and Oakland Streets in Salem. At the store he spoke with the store clerk, who stated that approximately three to five minutes earlier a white male wearing a red Adidas jacket entered the store and demanded money from the cash register. She stated that the robber threatened her with a handgun which was tucked inside his belt and left with approximately $100 from the store.

The detective testified that shortly after the incident an individual told a police officer that he had observed a black van parked at the corner of Nursery and North Streets, directly opposite Richdale Store, that he had observed a man hurrying into the van and telling the driver, "Let's get the hell out of here," and that the van sped away in the direction of the city of Beverly. The individual was said to have provided a registration number, according to the detective. Approximately one hour later, Beverly police stopped the van and a man named Gordon Preston was inside. Preston was wearing a red Adidas jacket and was in possession of approximately $100 in cash. A handgun was also found in the van. Preston was taken to the Beverly police station.

The detective also gave the following evidence relative to the defendant. As a result of information received by a Salem police officer, the police, including the detective, went to an address in Beverly, where they found the defendant and charged him with armed robbery. The detective told the grand jury that the defendant then said that he had been in Salem with Preston, that he had been driving a van and had parked it across the street from the store, and that when Preston ran back and told him "to get the hell out of here," that is what he did. The detective also testified that the van, driven by the defendant, belonged to Preston, and that Preston had been identified by the store clerk at the Salem District Court the next day. After the detective's grand jury testimony was completed, a juror asked, "What about the driver, was he supposed to be involved in this thing or not?" The detective answered, "We believe he was. He was the driver of the getaway van or the car." The juror then asked whether the driver was being charged at that time, and the assistant district attorney presenting the matter said, "Yes, he is. That is the defendant Mr. O' Dell who was the driver of the van at the time." The grand jury indicted Preston and the defendant.

The defendant's statement, which the detective related to the grand jury, was a portion of his statement contained in a report prepared by the Salem police and signed by the defendant. Although the police report is undated, the Commonwealth does not challenge the defendant's assertion that the report was in the possession of the Commonwealth at the time of the indictment. The report states that "James O'Dell admitted being in the van of Gordon Preston in Salem at approximately 8 P.M. and parking it on a side street by Richdale's store. He denies knowledge of knowing that Preston had any intention of pulling a robbery, or that he pulled a job after he ran back to the van. He admitted that Preston yelled 'Let's get out of here' but claims he thought that Preston may have only done some shoplifting. O'Dell stated that he drove over the Kernwood bridge to North Beverly ..." (emphasis added).

We do not consider the omission of the italicized words from the defendant's statement to have been a mere withholding of exculpatory evidence. Rather, presentation of the defendant's edited statement tended to distort the meaning of that portion of the defendant's statement that was repeated to the grand jury and, in addition, strongly suggested, incorrectly, an admission of guilt by silence. It was represented to the grand jury that, after the defendant had been told about the armed robbery committed by Preston, and after the defendant had been accused of participating in the robbery, he made a statement admitting that he had driven Preston to the store, that he had waited for Preston to come out of the store, and that he had quickly driven away in response to Preston's urging, thus assisting Preston's getaway. It is possible, and perhaps likely, particularly in view of the responses of the detective and the assistant district attorney to one juror's questions, that the grand jurors, being untrained in the law and uninformed that the defendant had denied having knowledge of Preston's criminal intent, incorrectly interpreted the defendant's statement as a confession that he was a willing participant in the crime. Clearly, the defendant's full statement was not such a confession, however.

Furthermore, if the defendant had not known in advance...